As per Order XLI Rule 27 of Code of Civil Procedure, the appellate court may admit additional evidence on some grounds. The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or. The application for production of additional evidence should be supported by affidavit by the appellant.
Sample Format of Affidavit for Application to produce additional evidence in an appeal under Order XLI Rule 27 CPC is as under.
IN THE COURT OF _________________
INTERLOCUTORY APPLICATION NO ____ OF 20__
CIVIL APPEAL NO____ OF 20___
IN THE MATTER OF:
MR. ____________ APPLICANT/ APPELLANT
I_______________ , aged _____ years, S/o _____________________, Resident of __________________ ________________, do hereby solemnly affirm and declare as under:-
1. That the deponent is the petitioner in the Application and appellant in the Appeal referred to above. Being well conversant with the facts and circumstances of the case, the deponent is fully competent to swear to this affidavit. The deponent will be referred to as the applicant hereinafter.
2. This appeal was filed on by the applicant against the Judgment and decree
of the City Civil Court dated ____________, in Original Suit No__________ of
3. It is submitted that prior to , notwithstanding the exercise of due diligence by the applicant, the accompanying documents could not have been procured by her as she had absolutely no knowledge of the transactions mentioned therein. Immediately after coming to know of the existence of the aforesaid transactions and the documents concerning the same on , the applicant applied for copies of said registered documents before the Sub-Registrar and obtained the same only on She is now producing the same alongwith the accompanying application.
4. In view of the aforementioned facts, it is most apparent that the non-production of the said documents earlier in the Court is owing to the circumstances referred to above and not owing to any willful default, neglect or laches on part of the applicant.
5. It is submitted that the aforesaid documents are of vital significance and will prove to be highly instrumental in establishing the case of the applicant and facilitate the easy and just disposal of the appeal by this Hon'ble Court.
6. In case the said documents are not received on file and in evidence by this Hon'ble Court, it will cause irreparable injury and hardship to the applicant.
7. It is, therefore, in the interest of justice that the documents listed in the accompanying application may be received by this Hon'ble Court on file and in evidence.
I, ____________ the Deponent above named do hereby verify that the contents of the above Affidavit are true and correct to my personal knowledge and nothing material has been concealed or falsely stated.
Verified at New Delhi on this day ___of _________20__.
Order XLI Rule 27 "Production of additional in Appellate Court"
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or)
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.